Consumer rights on the block?

Recently unveiled antipiracy measures aimed at eliminating even casual copying of software have some experts questioning whether companies have gone too far in controlling the use of their copyrighted material.

"It means that I can't use the software in any way I want to, regardless if it is legally permitted or not," said Jennifer Granick, director of Stanford University's Centre for Internet and Society.

Microsoft revealed last week that it will use so-called Product Activation technology in its next consumer version of Windows, codenamed Whistler, to limit each application to one computer. The technology requires each user to register the software over the Internet or by phone.

The development mimics what is happening in other industries.

A technology known as Content Protection for Recordable Media is being pushed by a coalition of major hardware makers, including Intel, IBM, Matsushita Electric and Toshiba. Another technology will allow members of the Secure Digital Music Initiative to add officially sanctioned copy protection to a variety of digital audio formats later this year.

All the technologies will shut out non-authorised users, which may be defined as a second machine (even if owned by the authorized user) or making an extra copy. In Microsoft's case, the Product Activation technology -- which will also be used to restrict the next-generation Office 10 -- will also require registration. That may not sit well with consumers, Granick said. "The law, which is a crystallisation of our values and a balance of our interests, doesn't mean a thing because they have produced technology that lets them have it their way," she said. "Our interests are not represented -- only the corporations are."

Yet the creators of the technology say a balance of interests is exactly what the Product Activation is about.

"We deploy technology in a way that strikes the balance," said Brad Smith, deputy general counsel for worldwide sales at Microsoft. Smith pursues software pirates and lobbies for pro-copyright measures for the Redmond, Washington, software giant.

"There is a tremendous concern in the academic sphere that technology is going too far," he said. "But that won't happen if technology companies do their job right in the first place. We won't have to use law to repeal a technological advance if the market works right."

From its inception, copyright law was intended to balance the need for rewards to content creators and the rights of the audience to make use of any works. To protect the user of such works, fair-use statutes were created as a guideline for the courts to determine what uses of a copyright are lawful.

Preventing consumers from installing a single application on more than one computer is within the law. The fair-use statute may allow a consumer to do such an installation, experts say, and the problem is that new antipiracy technology won't.

But Robert Holleyman, chief executive of the Business Software Alliance, the organization that fights piracy for the software industry, disagreed.

"Fair use tends to be more limited with a computer program," he said. "You can't use a partial copy of the program," and that eliminates many fair-use applications.

Instead of fighting the battle in court, Holleyman believes the market will decide which uses are just. Any technology that penalises consumers too much will fail, he said.

One New York copyright attorney agreed -- to an extent.

"Corporations have a lot of good will to lose if they start devaluing what it is they are selling by making it ephemeral," said the attorney, who asked not to be identified. "If someone buys a CD, they don't want their access to it disappearing next week."

But technology can easily go too far. Similar to an amendment to the copyright law allowing widows and orphans of copyright holders to renegotiate a copyright contract, a better provision may be needed to give consumers more fair-use rights.

"We need to find a way to do it again," the attorney said.

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